Citation Nr: 1522862
Decision Date: 06/01/15 Archive Date: 06/16/15
DOCKET NO. 09-27 102 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an extension of a temporary total disability rating under 38 C.F.R.
§ 4.30 due to treatment for a service-connected left knee disability requiring convalescence, in effect from November 6, 2007, until June 1, 2008.
ATTORNEY FOR THE BOARD
A. Bordewyk
INTRODUCTION
The Veteran served on active duty from May 2001 to May 2005.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, in pertinent part, entitlement to an extension of a temporary total disability rating under 38 C.F.R.
§ 4.30 due to treatment for a service-connected left knee disability requiring convalescence beyond June 1, 2008.
This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.
FINDING OF FACT
There is no basis for extension of a convalescence rating beyond June 1, 2008, as there is no indication, either in the medical records or in the lay evidence, of immobilization by cast or severe postoperative residuals.
CONCLUSION OF LAW
The criteria for entitlement to a temporary total evaluation beyond June 1, 2008, due to treatment for service-connected disability requiring convalescence have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.29, 4.30 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.
The notice requirements of the VCAA were met with a November 2007 letter sent prior to initial adjudication of the claim, advising him of what is required to substantiate the claim and of his and the VA's respective duties for obtaining evidence. While this letter did not inform the Veteran how disability ratings and effective dates were established, as the claim is being denied and no additional rating is being assigned, there is no prejudice to the Veteran.
VA also has met the duty to assist the Veteran with the development of facts pertinent to the appeal. The RO obtained the treatment records relevant to his surgery and recovery. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim.
As part of the duty to assist, VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R.
§ 3.159(c)(4) (2014). The Veteran did not receive a VA examination specifically related to his claim for an extension of a total rating due to convalescence. As explained below, the Board finds that there is no evidence of immobilization by cast or severe post-operative residuals. As such, an examination is not required. See also Barr v. Nicholson, 21 Vet. App. 303 (2007).
The Board finds that all necessary development has been accomplished and, therefore, appellate review of the claim may proceed without prejudice to the Veteran.
Laws and Regulations
A total rating (100 percent) will be assigned when it is established that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. See 38 C.F.R.
§ 4.30.
Extensions of one, two, or three months beyond the initial three months may be made for a total of six months. 38 C.F.R. § 4.30(b)(1). Extensions of one or more months up to six months beyond this initial six month period may be made upon a determination that there exist severe residuals under Section 4.30(a)(2) or under Section 4.30(a)(3), which include incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, the necessity for continued use of a wheelchair or crutches, or immobilization by cast. 38 C.F.R.
§ 4.30(b)(2).
Factual Background and Analysis
The Veteran's convalescent period initially was set at six months, from November 6, 2007, until June 1, 2008. In April 2008, the Veteran requested an extension of this total rating. He stated that since his job was labor intensive, he was unable to function until his knee was 100 percent healed. He submitted a treatment record from that month, in which his physician recommended an extension of convalescence for an additional three months. The physician did not explain the basis for this extension and the April 2008 treatment note along with the records leading up to that note did not support the need for an extension.
The VA treatment records demonstrate that the Veteran had surgery on November 6, 2007. He attended eight physical therapy sessions and was discharged from physical therapy in January 2008. At the last visit, he stated that he had recently joined a gym and he was able to achieve active and passive flexion to 135 degrees. The last post-operative visit was in February 2008.
In the April 2008 treatment record in which his physician recommended the three month extension, the Veteran reported intermittent pain usually with cold weather, intermittent localized swelling, and pain rated as a four on a ten point scale. The physician noted no acute distress, well-healed surgical incisions, no effusion, drainage, warmth, odor or redness, and a range of motion from zero to 130 degrees.
In statements submitted following the April 2008 rating decision, the Veteran asserted that his pain was severe, as high as a six out of ten and that he could only flex his knee to 130 degrees with extreme pain. He stated that he had gone back to work in landscaping in June 2008 and was laid off in August 2008 as a result of his disability. However, an August 2008 statement from his spouse stated that he was fired after getting into an altercation with a senior employee.
The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an extension of a temporary total disability rating under 38 C.F.R. § 4.30 due to treatment for a service-connected left knee disability requiring convalescence, in effect from November 6, 2007, until June 1, 2008. There is no indication, either in the medical records or in the lay evidence, of immobilization by cast or severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches. The Veteran's surgical incisions were noted to be well-healed, he was mobile without a cast, and was able to achieve flexion to at least 130 degrees. The Veteran was able to return to work for about two months, and, while he reported that he stopped working because of his left knee disability, his wife stated that he was fired for a reason unrelated to his left knee disability.
While the medical records demonstrate continued treatment and pain following June 1, 2008, they do not demonstrate post-operative residuals so severe so as to warrant an extension of the convalescent period beyond the initial six months. As such, the Board finds that the weight of the evidence is against an extension for convalescence beyond June 1, 2008. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to an extension of a temporary total rating for convalescence beyond June 1, 2008, pursuant to 38 C.F.R. § 4.30, is denied.
____________________________________________
MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs